Opinion
CIVIL ACTION NO. 02-1547, SECTION "N"
August 15, 2003
ORDER AND REASONS
Before the Court is a Motion for Summary Judgment, filed by Werner Co. For the reasons that follow, the motion is GRANTED IN PART, in that it is granted with respect to plaintiffs' claims that defendant's ladder was unreasonably dangerous in design and because of inadequate warning, and DENIED IN PART, in that it is denied with respect to plaintiffs' claim that defendant's ladder was unreasonably dangerous in construction.
I. BACKGROUND
Plaintiffs Helen and Walter Condiff filed this action against Werner Co. ("Werner") (incorrectly named as R.D. Werner Co., Inc. and Werner Ladder Co.), alleging that their son's April 26, 2001 head injury and subsequent death were caused by defects in the ladder he was using on the day of the injury, an extension ladder allegedly manufactured by Werner
II. LAW AND ANALYSIS
The Louisiana Products Liability Act ("LPLA") defines "the exclusive theories of liability for manufacturers for damage caused by their products." La. Rev. Stat. § 9:2800.52. Under the LPLA, the manufacturer of a product is liable for damage caused by a characteristic of its product that renders the product unreasonably dangerous. La. Rev. Stat. § 9:2800.54(A). A product can be unreasonably dangerous in only four ways: (1) its construction or composition, (2) its design, (3) because an adequate warning about the product was not provided, or (4) because the product does not conform to an express warranty. La. Rev. Stat. § 9:2800.54(B). Plaintiffs here allege all but the fourth. Werner has moved for summary judgment on grounds that plaintiffs cannot produce evidence demonstrating a genuine issue of material fact as to any of the three asserted theories.A. Standard for Summary Judgment:
"A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact." Roberts v. Cardinal Services, Inc., 266 F.3d 368, 373 (5th Cir. 2001), cert. denied, 535 U.S. 954 (2002). "An issue is material if its resolution could affect the outcome of the action." Id. "A factual dispute precludes a grant of summary judgment if the evidence would permit a reasonable jury to return a verdict for the nonmoving party." Hunt v. Rapides Healthcare System, LLC, 277 F.3d 757, 762 (2001). In making this determination, "`the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.'" Id. at 764 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). It "must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached." Roberts, 266 F.3d at 373. B. Unreasonably Dangerous in Construction:
To qualify as "unreasonably dangerous in construction or composition" under the LPLA, a product, at the time it left its manufacturer's control, must have "deviated in a material way from the manufacturer's specifications or performance standards for the product or from otherwise identical products manufactured by the same manufacturer." La. Rev. Stat. § 9:2800.55.
Defendant is correct that the plaintiffs have produced no direct evidence showing that the ladder in question deviated from specifications or from otherwise identical products. Instead, the plaintiffs and the intervener (the Louisiana Workers' Compensation Corporation "LWCC") have presented circumstantial evidence and rely on the doctrine of res ipsa loquitur. Plaintiffs argue that, absent a construction defect, ladders do not bend in normal use as this one allegedly did.
Res ipsa loquitur is an evidentiary doctrine that "`gives rise to a permissible inference of liability,'" although it "does not mandate that liability be found.'" Williams v. Emerson Electric Co., 909 F. Supp. 395, 398 (M.D. La. 1995) (Feldman, J.) (quoting State Farm Mutual Auto. Ins. Co. v. Wrap-On Co., 626 So.2d 874, 877 (La.Ct.App. 3d 1993)). The plaintiff bears the initial burden of showing the appropriateness of the theory's application. Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La. 1992). Such application is appropriate if: "1) the circumstances surrounding the accident are so unusual that, in the absence of other pertinent evidence, there is an inference of negligence [or other fault] on the part of the defendant; 2) the defendant had exclusive control over the thing causing the injury; and 3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to [fault] on defendant's part." Id. The second requirement is not strictly applied in Louisiana. ID.
Courts in Louisiana have applied the doctrine of res ipsa loquitur in products liability cases under the LPLA, particularly in cases involving an alleged construction/manufacturing defect. See Jurls v. Ford Motor Co., 752 So.2d 260, 265 (La.Ct.App. 2nd Cir. 2000) ("a manufacturing defect may be established by circumstantial evidence under the evidentiary doctrine of res ipsa loquitur"). Indeed, it has been applied in a case remarkably similar to this one, where the product at issue was a metal ladder that allegedly bent and buckled during normal use. See, Williams, 909 F. Supp. at 397-99 (M.D. La. 1995) (Feldman, J.). It is not necessary in such cases for the plaintiff to "negate all possible causes." ID. at 398 (quoting Wrap-On Co., 626 So.2d at 877). Rather, the plaintiff's burden is to present the court "with circumstantial evidence that excludes other reasonable hypotheses with a fair amount of certainty." Marks v. Dupre Transport, Inc., 2002 WL 31319940 *3 (E.D. La. 2002); see also Williams, 909 F. Supp. at 398. If the plaintiff can meet this burden, then res ipsa loquitur may be applicable even where, as here, the plaintiff is unable to produce any expert testimony establishing a specific manufacturing defect. See Williams, 909 F. Supp. at 398-99; Jurls, 752 So.2d at 265-66 ("The absence of expert testimony indicating a specific defect in the vehicle is not dispositive of liability."); cf. Kampen v. American Isuzu Motors, Inc., 119 F.3d 1193, *1202 (5th Cir. 1997) (rejecting defendant's contention "that Louisiana law requires expert testimony to prove that a product is unreasonably dangerous: "Rather, before and after the passage of the LPLA, Louisiana courts have held that the jury may infer that a product is unreasonably dangerous from the circumstances surrounding an accident."), vacated on other grds, 157 F.3d 306 (5th Cir. 1998).
Defendant asserts two arguments in opposition to the application of res ipsa loquitur. First, they argue that plaintiffs cannot show that Werner had exclusive control of the ladder at the time of the accident or that the plaintiffs have been unable to obtain information regarding the cause of the accident. To accept these arguments would require strict application of the second traditional element of res ipsa loquitur. As discussed supra, this is no longer done in Louisiana. Spott, 601 So.2d at 1362; Williams, 909 F. Supp. at 398 n. 3 ("the `exclusive control' often cited as an element of the doctrine has been significantly relaxed"). Rather, courts consider the second element to be satisfied if circumstantial evidence is presented indicating that other plausible explanations do not appear to be the probable cause of the accident and that the defendant's fault (in this case, an alleged defect) more probably than not was the cause. ID. In other words, "the circumstantial evidence presented `must exclude other reasonable hypothesis with a fair amount of certainty.'" Williams, 909 F. Supp. at 398 (quoting Wrap-On, 626 So.2d at 877). As discussed infra, plaintiffs have met this burden, at least for purposes of summary judgment. Thus, plaintiffs will not be barred from relying on res ipsa loquitur merely because they cannot show that Werner had exclusive control of the ladder or that they have had no access to the ladder.
Second, defendants assert that plaintiffs have presented no "circumstantial evidence that excludes other reasonable hypotheses for the cause of the accident, such as misuse of the ladder, modifications after the sale, and failure to maintain the ladder" or the possibility that the ladder might have slid out from under the decedent due to missing rubber pads. See Reply Memo at p. 8-9. Defendant is simply incorrect in this assertion. Plaintiffs have presented evidence that, if credited, excludes all of these hypotheses with a fair amount of certainty.
In his affidavit, Floyd Foley, attests that he, like David Condiff, was an employee of A.L. Dupre, Inc. and that he, like Condiff, was painting the residence at 1649 Joseph Street on the date of accident. See Foley Affidavit (May 2, 2003). He attests that, at the time of the accident, David was working near the top of a 24-foot Werner extension ladder, which was in normal use and angled against the house. ID. Foley, who was standing below, attests that he heard a noise, looked up, and saw that the part of the ladder where Condiff was standing (approximately three rungs from the top) had bent inward toward the wall. ID. Condiff and the ladder then fell. ID.
On summary judgment, the court is compelled to "`draw all reasonable inferences in favor of the nonmoving party'" and is forbidden to "`make credibility determinations.'" Hunt, 277 F.3d at 764 (quoting Reeves, 530 U.S. at 150). Given these constraints, the Court concludes that a reasonable jury could find that the ladder was leaning securely against the wall (i.e., not sliding or walking) at a proper angle when it bent inward at the place where Condiff was standing. Thus, for purposes of summary judgment, plaintiff's evidence excludes with a fair amount of certainty the hypotheses of misuse by Condiff or a lack of rubber pads as possible causes of the accident. Moreover, this evidence, if credited, establishes the type of unusual circumstances required for the application of res ipsa loquitur. Absent some defect, damage, or misuse, metal ladders do not bend and buckle in the manner described by Mr. Foley and depicted in the photograph attached to his affidavit.
Foley further attests that he had worked on the very same ladder earlier that day. See Foley Affidavit. He attests that the ladder (1) had never been damaged or mistreated in any way, (2) had no cracks or divets in the spot where it ultimately bent, (3) was not bent in any way prior to the accident, (4) was in the same structural condition as at the time it was purchased, and (5) was in good condition prior to Condiff using it on the date of the accident. ID. This evidence, if competent and credited, excludes the hypotheses of post-sale modification, improper maintenance, and virtually any plausible explanation that the mind can conjure other than that the ladder was unreasonably dangerous in its construction. Thus, for purposes of summary judgment, the Court finds that plaintiffs have satisfied their burden of establishing the appropriateness of res ipsa loquitur. Based upon the photograph and Mr. Foley's affidavit, a reasonable jury could conclude that the ladder was unreasonably dangerous in its construction.
Having reached this conclusion, the Court cautions the plaintiffs and intervener that their case nevertheless continues to rest on very thin ground. For purposes of this motion, the Court has drawn all reasonable inferences in plaintiffs' favor. Among the inferences drawn in plaintiffs' favor is the competence of Mr. Foley to testify as to such matters as the physical condition of the ladder (relative to its condition at the time of purchase) and its maintenance. He was an employee of Dupre, and for purposes of summary judgment, it reasonably can be inferred that he had personal knowledge of these matters. At trial, however, plaintiffs will be required to introduce evidence sufficient to support a finding that Mr. Foley has the requisite personal knowledge. See Fed.R.Evid. 602 (" A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter."). Further, Mr. Foley's testimony will be subject to vigorous cross examination by defense counsel. As Judge Feldman noted in Williams, probing cross examination can change the whole tenor of a case, including the applicability of res ipsa loquitur. Williams, 909 F. supp. at 399 (noting, although the testimony of plaintiff's family members had established facts sufficient to warrant application of res ipsa loquitur, "probing cross examination could change all that"). Thus, plaintiffs should in no way construe the Court's ruling at this juncture as an indication that the Court necessarily will reach the same conclusion at trial regarding the applicability of res ipsa loquitur. If the evidence presented by Foley's affidavit is undermined at trial, then a Rule 50 motion by the defendant may be well-taken.
C. Unreasonably Dangerous in Design:
To qualify as "unreasonably dangerous in design" under the LPLA, there must have existed, at the time the product left its manufacturer's control, "an alternative design for the product that was capable of preventing the claimant's damage," and the "likelihood that the product's design would cause the claimant's damage and the gravity of that damage" must have "outweighed the burden on the manufacturer of adopting such alternative design and the adverse effect, if any, of such alternative design on the utility of the product." La. Rev. Stat. § 9:2800.56. Plaintiffs have produced no evidence tending to prove any of these requirements. Plaintiffs' circumstantial evidence regarding the accident supports no reasonable inferences regarding the existence, feasibility, or costliness of alternative designs. In fact, the plaintiffs do not even attempt to make such an argument. Accordingly, given that no genuine issue of material fact has been established in this regard, the Court finds that the defendant is entitled to judgment as a matter of law on the design claim.
D. Unreasonably Dangerous Due to an Inadequate Warning:
To qualify as "unreasonably dangerous because an adequate warning about the product has not been provided," a product, at the time the product left its manufacturer's control, must have "possessed a characteristic that may cause damage" and the manufacturer must have "failed to use reasonable care to provide an adequate warning of such characteristic and its danger to users and handlers of the product." La. Rev. Stat. § 9:2800.57. Plaintiffs have produced no evidence regarding what warning, if any, was provided with the ladder. Nor does plaintiffs' circumstantial evidence regarding the accident support any reasonable inferences regarding the adequacy or inadequacy of such a warning. Accordingly, given that no genuine issue of material fact has been established in this regard, the Court finds that the defendant is entitled to judgment as a matter of law on the failure to warn claim.
III. CONCLUSION
For the foregoing reasons, IT IS ORDERED that Motion for Summary Judgment, filed by Werner Co., is GRANTED IN PART, in that it is granted with respect to plaintiffs' claims that defendant's ladder was unreasonably dangerous in design and unreasonably dangerous because of inadequate warning, and DENIED IN PART, in that it is denied with respect to plaintiffs' claim that defendant's ladder was unreasonably dangerous in construction.